Friday, October 29, 2010

Shirley Smith gets convicted in California for assault on a child resulting in death. The California appellate courts were fine with the conviction, as was the federal district court when Smith filed a habeas petition. But in 2006, the Ninth Circuit held that no reasonable jury anywhere -- even after applying massive deference -- could have found Smith guilty beyond a reasonable doubt, and accordingly reversed her conviction.

The Supreme Court, however, GVR'd the case in 2007, asking the Ninth Circuit to take a second look. Which the Ninth Circuit did, concluding that, yeah, it was sure it was right, and that nothing in the interim decided by the Supreme Court changed that conclusion.

At which point California again returned to the Supreme Court. Which, earlier this year, yet again GVR'd the case. "How about taking a third look at the case, Ninth Circuit?"

"Whatever you say, oh Supreme Court." But today, the Ninth Circuit yet again reaffirms its opinion. Writing an opinion that's clearly designed to mollify the Court, repeatedly reiterating that the panel is keenly aware of the required deference, that this is a truly unusual case, and that this is not a case of the Ninth Circuit doing the kind of thing that the Supreme Court doesn't like.

The opinion is very well written. We'll see if the third time's a charm, and whether the Supreme Court finally lets this one stick.

It's a run-of-the-mill immigration case, holding that a person who tried to cross the border illegally by pretending to be a U.S. citizen (by using someone else's birth certificate) isn't eligible for cancellation of removal. Shortly into the court's analysis, the opinion says: "[I]n this civil proceeding we are almost asked to
take a flight of fancy when we are asked to believe that Valadez was not asserting citizenship at that time."

Then immediately follows the relevant line: "We are not that gormless about life in the real world."

Admission time. I had no idea what "gormless" meant. Had never seen that word before. Though, from the context, its meaning was crystal clear. Those of us from my generation would probably say "clueless" instead.

So I kept on reading. Occasionally stumbling across other ten-cent words as well.

Which made me think: I'm pretty confident I know who wrote this opinion.

Yep. Judge Fernandez.

I figured that this was another word that Judge Fernandez introduced for the first time in a published opinion. But I was wrong. The word has been used three times before. By the same person. Not Judge Fernandez.

Judge Fernandez's doppelganger is Judge John Kane. From the District of Colorado. The author of three different federal district court opinions that also use the word "gormless".

Wednesday, October 27, 2010

Rarely do you see a word used for the first time ever in the Court of Appeal. Still rarer do you see a word used for the first time ever in any published or unpublished, state or federal appellate opinion.

Admittedly, it's a quote. Still. It couldn't help but bring a smile to my face. As well as remind me of the scene in "Superbad" in which the officers tell "McLovin": "A lot of people have weird names lately . . . We arrested a man-lady who was legally named 'Phuck'. I think it was Vietnamese, with a 'Ph', but still pretty shocking to see on a license." (Scene here.) Classic. (Oh, yeah. And if you want to know how many times that particular movie uses that obscenity, check this out. Short answer: Lots. Stunningly lots.)

But Justice Scotland nonetheless remains the first person in the history of Anglo-American jurisprudence to use the word "Phuck" in an appellate opinion. Congratulations, I guess, are in order. Or at least recognition.

Tuesday, October 26, 2010

The Ninth Circuit affirms a TRO that stays the execution of Arizona inmate Jeffrey Landrigan. Now, it's the Ninth Circuit, so that's not totally unprecedented.

But if and when people reflexively dismiss this result as the typical product of an out-of-control Ninth Circuit -- and I'm quite confident that many the blogosphere and elsewhere will do so -- you might want to remind them of two things.

First, the panel of three judges who enter today's order includes Judge Rymer. This is hardly someone who's constantly on the lookout for any excuse to delay an execution. Hardly. Way.

Second, check out the facts, which are truly unusual. Arizona's trying to whack Landrigan, but the only sodium thiopental it can get its hands on that hasn't expired is from an unidentified foreign manufacturing source that isn't approved by the FDA. Now, you might think -- as do I -- that the Eighth Amendment doesn't totally categorically prohibit people from getting iced with drugs that may be unsafe. We're killing them, after all. Not exactly worried about safety.

But we are somewhat worried about effectiveness. We want the dude to be killed. We also want to make sure the drug works as intended, and doesn't (for example) cause unnecessary pain, a lingering coma, etc.

So Landrigan files a petition that says that using this particular product would violate the Eighth Amendment, and the district court -- quite understandably, in my view -- tells Arizona to disclose where the drug comes from (in order to evaluate Landrigan's claims) or explain why it doesn't think that's relevant. Arizona asserts in response that state law precludes it from disclosing that fact, which it doesn't think is relevant anyway, but the federal court disagrees, and on Saturday (!), ordered Arizona to immediately make the disclosure.

To which Arizona (on Sunday) (!!) essentially responded: No. Even though the execution's scheduled for Tuesday, we're not going to tell you where the drugs are from, and we're not going to comply with the order of the court.

So on Monday, the district court says -- again, quite reasonably, in my view -- "If you're not going to comply with my order, and you're not going to tell everyone where you got the drugs so they can back up their claim that the use of this particular product violates the Eighth Amendment, I'm not going to let you use the thing on Tuesday. Execution stayed." Arizona filed an appeal with the Ninth Circuit, but this morning -- hours before the scheduled execution -- the Court of Appeal affirms (rightfully, in my view) the district court.

It's not enough to say, as Arizona has, that the Eighth Amendment doesn't categorically preclude the use of non-FDA approved manufacturers, nor sufficient to merely state that the drugs were "cleared and approved by U.S. Customs and FDA officials." With respect, we don't delegate Eighth Amendment claims to secret resolution by unnamed U.S. employees who look at a bottle at the border and decide to let it in. We have a process for this. And part of that process is that you comply with judicial orders. And when you don't, don't be surprised -- in the slightest -- that we don't let you use the drugs whose source you refuse to reveal and the qualities of which you deliberately obfuscate and do not allow to be submitted to adversarial discourse.

I'm sure Arizona will ask for en banc review on this one, and then file something today with the Supreme Court (which I assume it already has). I've got no crystal ball, of course. But I gotta say that, in my view, this is decidedly not the case of the Ninth Circuit throwing up whatever roadblocks it can to prevent a death sentence from being carried out. Rather, the problem here is entirely of Arizona's own doing. So it would definitely not get my vote, either in the Ninth Circuit or in the Supreme Court, to dissolve the stay. And I'll hazard a prediction -- always dangerous in this area -- that there are lots of others who'll feel the same way. Both on the Ninth Circuit and in the Supreme Court.

I'll just add one thing to Justice Aaron's opinion in this case, which is both short (a dozen double-spaced pages) and spot on.

When a vexatious litigant files a lawsuit pro per in violation of a prefiling order that expressly precludes her from doing so without permission of the chief judge, that person has committed a contempt of court. Even if, as here, she later obtains an attorney to represented, she's still in contempt. I think it'd be pretty surprising if the law was that this contemptous conduct could benefit the transgressor -- for example, here, by making her complaint timely (i.e., within the statute of limitations). So even beyond the words of the California Code of Civil Procedure, which say that such lawsuits shall indeed be dismissed, I'm not at all sympathetic to the view of the plaintiff here. You can't toll the limitations period through deliberately contemptuous conduct.

Monday, October 25, 2010

The California Supreme Court finally wades into the Riverside County mess. And hold that, yep, all the lower courts were correct. You don't have to pull judges out of (inter alia) Probate Court in order to solve the huge backlog of criminal cases. But it's still the state's fault -- and a continuing one, at that -- that many defendants in criminal cases in Riverside don't get a speedy trial. So, as a direct result of the state's failure, criminal charges against various defendants are dismissed.

This is one of those rare cases in which the highest tribunal of a state rightly grants review to make clear that the lower courts are right and that an executive-level official (here, the Riverside DA) should stop making contrary claims. It settles the law. It puts the onus back where it belongs; here, on the state. Good for everyone.

Plus, in truth, I basically have to admit that fact. I have nothing at all to say about the doctrine applied by the Court of Appeal, and I also agree with its result. A franchise contract specifies that Washington law applies. The franchisor is based in Vancouver, Canada -- just across the border. That's reasonable, and we should enforce that choice of law provision. That remains the case even though California's franchise law provides that parties can't waive the pro-franchisee provisions of California's law, as -- surprisingly, at least to me -- I learned that Washington law is even more protective of franchisees than is California. Makes sense.

So I have no beef whatsoever here.

Nonetheless, I thought I'd at least mention that this is a somewhat weird case because guess who's arguing for the invalidity of the choice-of-law provision here? The franchisor. The party that drafted the contract, and the party that inserted the choice of law provision. Pretty rare, huh?

Seems to me that, wholly apart from the doctrinal merits, there might be a problem there. I think a party that drafts the contract -- largely a non-negotiable contract of adhesion, at that -- has a hugely uphill battle when it argues that choice-of-law provisions that it drafted are legally unenforceable. For me, it wouldn't normally do for such a party to say: "Well, we thought they might be unenforceable in California, and even said so in the franchise agreement." Which 1-800-GOT-JUNK? indeed did here. It'd be easy enough to say: "Washington law applies except for franchisees in California, for whom California law applies." But 1-800 didn't do that, and I imagine deliberately so.

When you purposefully create an ambiguity -- saying "Washington law applies, except maybe it doesn't" -- in situations in which clarity is easy, I think a reasonable interpretation is that you're trying to have it both ways, and leave open the possibility that in a different case, you'd indeed be arguing that Washington law applies, even for franchisees in California. I don't like that. If there's ambiguity, and you caused it, I don't think I'm going to be very sympathetic when you say that the contract that you drafted is illegal. Which is yet another reason I'm happy with the result here.

I'd discuss the opinion anyway. If only to point out that in the unlikely event that you want to commit arson, the opinion gives two pieces of implicit advice.

First, don't just pour gasoline all over the place, nor put it alone in a container. It'll just explode and burn out too quickly. Instead, stick the gasoline in a container alongside lots of paper -- magazines, cardboard, old mail, etc. That'll make the thing burn better, apparently.

Second, if you follow the above advice, do not use your own magazines and mail addressed to you. Yes, you might think it'll all burn up. But you'll be wrong. So, for example, when the arson investigators here found the ignition materials, alongside a plethora of old magazines and mail with Anthony Smith's name on them, guess who their chief suspect was, and who they ultimately prosecuted? Yep. Same guy. A guy who, investigators later discovered, had a beef with the business that was burned down.

But unlike most of my lessons, maybe this last one is something that you can ignore. 'Cause guess what? Notwithstanding this evidence, Smith wasn't convicted at trial. His first jury hung 7-5 in favor of acquittal. And his second jury hung 11-1 the same way. At which point the government gave up.

So maybe the lesson is: Go ahead and use your own mail. No biggie.

Or, perhaps, that trying to frame someone by using their mail will successfully avoid the heat on you, but won't get the other person convicted.

Notwithstanding the importance of those lessons, as well as the disputes that they might engender, that's not -- obviously -- what the majority and dissent disagree about. The other thing that allegedly happened is that the prosecutor in the case allegedly failed to disclose exculpatory evidence. So Smith sues.

The majority, however, affirms the district court's dismissal of this action. Holding that Smith can't prevail because he wasn't convicted. Sure, he spent a year and a half in prison (since he couldn't make bail), lost his liberties and (potentially) wages and defense costs, etc. Too bad. You undeniably could have sued if you were found guilty, the Ninth Circuit says. But you weren't, so you can't. Sorry about that.

The Ninth Circuit's got a reason for that seemingly counterintuitive holding, of course, arguing that by definition you're categorically not deprived of a fair trial as a result of the failure to disclose exculpatory evidence if the consequences of that proceeding aren't adverse. I'm not sure this really applies to a hung jury or in situations in which (as here) there are multiple proceedings, but there's a broader beef as well, and that's the one that Judge Nelson articulates. You can be damaged, and your rights violated, she argues, even if the result of the trial is an acquittal. Hence the rule that the Ninth Circuit articulates, she says, unfairly imposes the requirement of a guilty verdict on civil Brady claims.

I wanted to add just one thing to Judge Nelson's dissent. Suppose we're not talking about a Brady violation -- a failure to disclose exculpatory evidence -- but instead out-and-out perjury. Let's say the prosecutor puts a witness on the stand that he knows is committing perjury; indeed, has told him to lie. Moreover, at trial, that is the only evidence against that defendant. Absent that evidence, there'd have been a dismissal of the case at the close of the prosecution's case. Because of that evidence, defendant spends $100,000 in attorney's fees and associated costs in order to rebut it at trial, with witnesses, experts, etc. And, ultimately, the jury agrees with him and acquits him.

Presumably the answer has to be the same, right? No remedy, since no conviction. Putting on perjured testimony seems practically identical to failing to disclose exculpatory evidence, after all, and has the same effect. So even putting on perjured testimony doesn't violate anyone's rights as long as the jury eventually figures it out (or hangs), eh?

That just doesn't seem plausible to me. Either under existing doctrine or as a matter of fundamental fairness. Seems to me that you can sue for deliberate perjury even if you're acquitted. Ditto, I think, for a failure to disclose exculpatory evidence, at least when (as here) there are damages that allegedly flow therefrom. (Indeed, in some ways, a failure to disclose exculpatory evidence is more harmful than putting on perjured testimony -- at least you get to challenge and cross-examine the latter, whereas with the former you never even know about the stuff and hence have no opportunity to present it.)

Tuesday, October 19, 2010

I'm reading along in this opinion about habeas hearings concerning alleged prosecutorial conduct, and the Ninth Circuit says, yeah, we need a new hearing because the district court erred. Thereafter, the opinion says:

"In his opening brief, Earp requested that, upon remand, we reassign the case to a different judge. In the absence of personal bias, we assign a case to a new judge on remand only in 'unusual circumstances.' [Citation] . . . . We regrettably conclude that the circumstances of this case warrant reassignment."

"In its order, the district judge made explicit credibility findings—it found Taylor incredible and Foltz and Milkey credible. On remand, we cannot reasonably expect the district judge to set aside these credibility
findings and reassess the viability of Earp’s claim of prosecutorial misconduct in light of Doshier’s testimony."

At which point I say to myself: "Okay. That seems plausible. I can see the reason for potentially remanding to another judge. Still somewhat unusual, but I can understand the basis for it."

But then Judge Tallman continues:

"Additionally, during the pendency of the original proceedings on remand, we had to intervene and enter an emergency stay in response to the district judge’s refusal to continue the evidentiary hearing in order to allow Earp and the California Department of Corrections time to locate and transport inmate Taylor to Los Angeles to testify. At the next hearing, the district judge was very critical of the request for a stay, notwithstanding the importance our remand order placed on assessing Taylor’s accusation. Under these circumstances, reassignment is necessary to uphold the appearance of justice."

Now I have a different reaction. This is clearly not some ordinary district court judge. This is a judge that the Ninth Circuit doesn't like. And with respect to whom the feelings are fully reciprocal.

Which makes me think only one thing. Judge Real.

At which point I look at the caption. Yep. It's him.

Which also resolves a lingering question that I had about the opinion. I initially understood why reassignment was plausible -- since a judge who has already found someone credible is indeed unlikely to change her mind -- but also thought that it might also be somewhat difficult for a judge in the same district to disagree with his colleague and find uncredible a witness that his cohort expressly found credible. Not impossible, but perhaps hard; perhaps nearly as hard as the original judge changing her mind.

But once you realize it's Judge Real, that concern disappears. I don't think anyone minds disagreeing with that guy. Indeed, at least on the Ninth Circuit, I think it's an affirmative pleasure.

Which, parenthetically, is probably what the Supreme Court often feels when it reverses the Ninth. So this time the shoe's on the other foot.

Monday, October 18, 2010

Let's say you're on probation, and officers have previously found marijuana at your residence. Let's further say that you're thinking about having a friend send you a huge package of weed from California in the mail.

Let me give you a piece of advice in such settings. Do not -- I repeat, do not -- go to your local post office shortly before this shipment and ask the postmaster whether your local post office conducts dog searches to look for drugs in the mail. Because you know what? Once you ask, they will. At least with respect to your post office box.

And entirely rightly so. Your question alone generates reasonable suspicion up the ying yang. So when your post office box gets a handwritten package addressed to a strange dude who's not you, guess what? They're going to search it. And no one -- not the district court, the Ninth Circuit, or your local law professor -- will have the slightest problem with that.

So that's a practical lesson for today. One which I'd hope would be obvious, and yet one in which reality apparently reflects is not.

Let me also add a doctrinal lesson. One that's far from obvious.

Judge O'Scannlain files a separate concurrence to make an additional, much more expansive, point. He argues that the defendant here has no standing to even raise a Fourth Amendment challenge to the search because the package was sent to an alias and the defendant denied at trial that the marijuana was his. Judge O'Scannlain cites several out-of-circuit cases that hold that people do not have a reasonable expectation of privacy in packages that are addressed to others to argue that, accordingly, a defendant does not have a reasonable expectation of privacy in a package that the defendant argues at trial was indeed addressed to others.

But my initial reaction -- admittedly without reading these out-of-circuit cases -- is that the issue here is different. It's one thing to say that an identifiable person, X, is the only one with standing when a package is addressed to him. If a package is addressed to me, but you open it, I can understand why courts might give me standing but not you, particularly if your receipt or opening of the mail was unauthorized. But it's different when the addressee is a fictional person. In such a setting, it seems strange to deny standing to everyone and essentially make unlimited searches permissible. Seems to me that the guy who receives the package in such a case does indeed have standing. Cases involving real people would thus be distinguishable from cases that involve fictional -- at least as far as we know -- people.

Now, Judge O'Scannlain would hold that the reason the cases should come out the same way is because the defendant has argued at trial that he's not the addressee (in an attempt to escape prosecution), and hence -- according to Judge O'Scannlain -- essentially concedes that he has no standing. This makes internal sense, I guess. But even beyond possessory and other interest that might still grant standing, why isn't the converse perspective equally true? The United States argues that the defendant was the true addressee; hence, why isn't that binding on the government, as an admission that the defendant does have standing?

It seems to me that either perspective is equally valid. It just depends on which way one looks at it. Plus, from a practical perspective, I think it make sense that we realize what we all know to be true: in most of these cases, the defendant was indeed the intended recipient, as the government has rightly argued (and as the jury will most likely conclude). Given this reality, I'm not at all convinced that it makes sense to adopt what seems to me a somewhat too-cute-by-half doctrine that says whenever you have a package mailed to you but use an alias you've entirely waive standing. Such a result seems less compelled by precedent than a desire to achieve a particular result through invocation of stringent, and unnecessary, procedural dictates.

So I would sign on with the per curiam opinion here, but not with Judge O'Scannlain's concurrence.

Thursday, October 14, 2010

I'm not a big boxing fan. So maybe everyone "in the know" already knows about this.

But apparently, before the Antonio Margarito/Shane Mosley welterweight title fight in 2009, officials caught Margarito with a "plaster-like" substance strapped to both of his fists. They confiscated them, and the fight went on, at which Margarito -- bereft of plaster of Paris knuckles -- was the victim of a "stunning upset" and lost on a TKO in the ninth round.

But that wasn't all for Margarito. California then revoked his boxing license. He hired Daniel Petrocelli to appeal, who argued that Margarito's Due Process rights were violated. But the Court of Appeal didn't buy it. At all. (Nor do I.) It affirms.

Not that this is fatal for Margarito. Sure, it put his boxing career on hold. But there are other states. And, apparently, Texas is just fine with a guy (allegedly) caught white-handed with plaster of Paris in both of his boxing gloves. Margarito's apparently scheduled to fight Manny Pacquiao in Cowboys Stadium in Texas on November 13th.

Pacquiao, meanwhile, is represented by Petrocelli in a defamation lawsuit against the Mayweathers for asserting that Pacquiao uses performance-enhancing drugs. I wonder if that's in the conflict disclosures in Petrocelli's fee agreement?

You've previously been convicted of molesting a little girl in a manner described as "child rape." Now, after getting out of prison, you had some beers, went to a McDonald's, deliberately hung around the play structure while little kids played, and then grabbed a little girl's crotch and ran away when her father confronted you about it.

You claim that it's cruel and unusual punishment to sentence you to life in prison under Washington state's "two strikes" law for child molesters. But let's face it. You're not exactly the poster child for a rehabilitated offender. You're instead a repeat offender who's deliberately preying on young kids. You're getting no sympathy whatsoever. None.

Wednesday, October 13, 2010

Your 18-month old daughter looks like she might have injured her arm. So you decide to take her to the hospital to get her checked out. Someone else is currently using your car, which is the one with the child seat in it. You try to find another child seat but can't. You ultimately decide that it's important to get your kid to the hospital sooner rather than later, so you drive there without a car seat, with your kid sitting on the lap of her grandmother.

On the way to the hospital, some dude speeds through a stop sign and slams into your car. Your daughter is thrown from the vehicle and dies.

You're not at fault at all for the accident. The other dude was speeding and ran through a stop sign, and may well be charged with homicide, and there was no way for you to avoid the accident. It could have happened to anyone.

But this hardly assuages your guilt over the death of your daughter. You should have had her in a car seat. You thought that getting to the hospital was more important, but as it turns out, this was a fatal error. Needless to say, you're completely devastated.

You argue that you haven't been charged with a crime, haven't been convicted, and surely didn't have any intent to harm your child when you drove her to the hospital. How is it fair to take the other kids way based upon an accident that wasn't your fault?

But the Court of Appeal affirms. Section 300(f) says that a court may take your kids away if "the child's parent or guardian caused the death of another through abuse or neglect." You neglected to put your child in a car seat, and she died. End of story.

Admittedly, in this particular case, there are other allegations as well (grandparents have a dirty home, wife has a history of domestic violence and borderline personality disorder, etc.) that potentially supported the ultimate decision to take the kids away from the father. But that was simply icing on the cake, as Section 300(f) granted jurisdiction based solely on the failure to secure the kid in a child seat.

Tuesday, October 12, 2010

I've got nothing of substance to say about this Ninth Circuit opinion. But I noticed that it was from the District of Idaho -- and, in particular, from Pocatello.

You don't see many cases from Pocatello in the Ninth Circuit. It's got 50,000 souls, and even though it may be the largest city in Eastern Idaho, that's not saying much. For a sense of what we're talking about, check out the picture of Downtown.

The Ninth Circuit publishes two or three opinions a year from the district court in Pocatello, so this is not an L.A. or S.F. court on the appellate front either. That said, the federal courthouse in Pocatello looks almost as fancy -- albeit smaller -- as its brethren. Plus, parking's probably a whole lot easier.

However, the number of cases filed in Pocatello are very small. As of August of this year, for example, there were 76 civil cases and 40 criminal cases total filed in federal court in 2010 in Pocatello. Talk about a small docket. Though I'll note that's tons more than filed in Moscow (the City in Idaho, not the capital of Russia -- courthouse of the former here). Which has had a veritable crime wave this year -- as of August, there's been a grand total of seven federal criminal cases filed there. Nice life.

When in law school, I dated a woman who grew up in Pocatello. Didn't know much about the place then. Only know slightly more about the place now. But thought I'd share what I do.

Which includes its motto. "Pocatello: Gateway to the Northwest." Whenever your claim to fame is that you're the gateway to somewhere different; well, that tells you something.

It's not enough that you think up a really good class action and get awarded $12 million-plus in costs and attorney's fees. Then you have to whack it up with your co-counsel. And fights over $12 million can get relatively ugly. Just ask Leonard Carder and Patten, Faith & Sandford.

The appeal here is about jurisdiction, not the merits. As to which the Court of Appeal gets it exactly right. When there's a fight about distribution of fees, it's a "live" controversy that can legitimately be subject to a declaratory judgment action. Moreover, that controversy can -- but need not -- be in front of the same judge that approved the settlement. There's not "exclusive" jurisdiction there. Particularly when the trial court said so expressly when it approved the settlement. How Judge Rhodes (up in LA) got this one wrong is beyond me.

But it's all good now. And the fight to whack up the booty can continue apace.

Monday, October 11, 2010

Two plainclothes police officers are investigating a gang-related crime in Anaheim on turf that they know belongs to the ATC gang when they see four guys running down the street. One of these young men -- J.G. -- is holding a brick, and several others are holding other throwable items as well (e.g., a rock and part of a lamp). One of the officers has had a variety of conversations with J.G., who has admitted that he's in the ATC gang. And the four men running down the street carrying throwable objects in their hand, including a brick, are screaming things like: "He's over there!"

Stunningly, the police officers are suspicious that a crime might be afoot. That, oh, I don't know, maybe this one gang member and his seemingly gang buddies on gang turf are out to, say, throw a brick at someone who they're chasing. So they get in their car and arrest the dudes. Who, after being questioned, admit that, yeah, they were after someone.

J.G. then files a motion claiming that his arrest was without probable cause. But Justice Bedsworth, writing for his colleagues, disagrees. He correctly notes that we're talking about probable cause here. Sure, it's possible, as Justice Bedsworth characteristically puts it, that J.G. and his gang buddies "were chasing a rabbit or playing a game." Because there are lots of rabbits on gang turf in central Anaheim, and the classic way of catching them is to hit them with a brick.

But it's also "probable" that what we're seeing is the possession of a deadly weapon with intent to assault. And that justifies the arrest. Even though, as the Court of Appeal forthrightly recognizes, the issue is "close".

Friday, October 08, 2010

I understand that people have a Second Amendment right to bear firearms. But even if Jason is allegedly "better" now, I think it's eminently reasonable that his guns be taken away from him for a while. Or, more accurately, sent to his parents for a while. Particularly since I live in the same city as Jason (San Diego).

Earlier this year, I gave a speech to the Federalist Society at the Ronald Reagan Library in which I argued that the prevailing economic climate does affect -- in part -- some holdings of the judiciary, and that this impact is both understandable and not-entirely-illegitimate.

A decade ago, I think this case comes out the other way. But in this era of rampant foreclosures and upside-down properties, I completely understand why the Court of Appeal holds the way it does.

Justice Moore concludes that, if she knows it, a real estate broker has a duty to disclose to a potential buyer the fact that a listed property is massively upside-down and cannot be sold at its ostensible contract price without a "short sale" -- a sale that the lenders have repeatedly refused to enter into. Hence, when a seller enters into a contract with a buyer to purchase a house for $749,000, then the buyer (in reliance upon the sale) sells his own home to get the money to buy the new one, only to discover to his horror that the loans on the house total over $1.14 million -- and hence that $749,000 totally won't get him the house -- he can sue the broker for damages.

Justice Moore isn't shy about admitting that the Court of Appeal's holding is based in part upon the current economic climate and what we've learned therefrom. The first paragraph of the opinion begins:

"Particularly in these days of rampant foreclosures and short sales, '[t]he manner in which California's licensed real estate brokers and salesmen conduct business is a matter of public interest and concern. [Citations.]' (Wilson v. Lewis (1980) 106 Cal.App.3d 802, 805-806.) When the real estate professionals involved in the purchase and sale of a residential property do not disclose to the buyer that the property is so greatly overencumbered that it is almost certain clear title cannot be conveyed for the agreed upon price, the transaction is doomed to fail. Not only is the buyer stung, but the marketplace is disrupted and the stream of commerce is impeded. When properties made unsellable by their debt load are listed for sale without appropriate disclosures and sales fall through, purchasers become leery of the marketplace and lenders preparing to extend credit to those purchasers waste valuable time in processing useless loans. In the presently downtrodden economy, it behooves us all for business transactions to come to fruition and for the members of the public to have confidence in real estate agents and brokers."

Thursday, October 07, 2010

Continuing our theme from a couple days ago, here's another case from earlier today where the Board of Parole Hearings denies parole to someone convicted of second degree murder. Sentenced to 16 years to life, Powell has now been in prison for 27 years. Here again is another "model prisoner," with everyone agreeing that his risk of reoffending is totally low.

But the murder 29 years ago was an ugly one. So the Board predictably denies parole. At which point the Court of Appeal reverses and remands.

Now wait and see what happens. The Board will likely now grant Parole. Then the Governor will reverse the Board. Then another habeas petition. Then, two years from now, another opinion by the Court of Appeal.

"Michael Sean Huitt and Matt Nino (hereafter collectively plaintiffs) were injured while attempting to light a water heater at a construction site (hereafter the school site or school) owned by the Porterville Unified School District (hereafter the school district). After initial attempts to light the water heater's pilot light failed, Huitt decided to bleed any accumulated air in the natural gas pipe. This action caused natural gas to accumulate in the water heater closet. After Huitt sealed the natural gas line, he again attempted to light the water heater's pilot light. The accumulated natural gas exploded, resulting in serious injuries to plaintiffs."

Okay, that sucks. I'm sure there were severe injuries. But you were the ones that bled the line, after all. So I'm not sure how this is going to be an actual lawsuit.

"Plaintiffs filed suit against the Southern California Gas Company (hereafter the Gas Company), alleging that the natural gas that had accumulated in the water heater closet lacked any odorant. Natural gas, in its natural state, is a colorless and odorless gas. Federal regulations require odorant be added to natural gas so that it is detectable by a person with a normal sense of smell."

Oh. Well, if there wasn't any odorant, I totally get the lawsuit. You gotta put that stuff in there. I can see how that'd cause injury. Now I understand.

"The evidence established that the odorant added to natural gas is adsorbed by new steel gas pipes until the pipes become seasoned (or saturated). It was undisputed that the natural gas supplied by the Gas Company to the school site was odorized properly at the meter, but the odorant was adsorbed as it traveled through the new steel gas pipes owned and installed by the school district."

"Plaintiffs argued the Gas Company had a duty to warn them that new steel gas pipes adsorb the odorant in the natural gas and, had they known of this fact, they would not have bled the gas pipe into a confined closet."

Uh, no. Not their fault. You're the one that bled the line. If you bleed a line, you better know how to do it right. Including but not limited to (1) the possibility of adsorbtion, and (2) the fact that you don't bleed a line into a closed closet. Even I knew the latter. And I'm a moron.

"The jury agreed and awarded each plaintiff in excess of $1 million in compensatory damages. In addition, the jury found that the Gas Company acted with malice and awarded each plaintiff $5 million in punitive damages."

Nope. Doesn't pass the smell test. (Pardon the pun.) Not psyched for that.

Tuesday, October 05, 2010

Kuldip Kler is found guilty of second-degree murder in 1989 and sentenced to 15 years to life. He commits two minor disciplinary offenses during his early years in prison but is otherwise a model prisoner. Even though he's a Sikh and there are no programs for his religion in prison, he takes forty-plus religion and bible study classes, and does a massive number of self-help and counseling programs; e.g., 75 (!) between 2005 and 2007. And I know it's a stereotype, but he also does incredibly good ceramics work as a prisoner. Which he then donates to the San Joaquin County Child Abuse Prevention Council, which raised over $15,000 selling them.

Kler has consistently admitted his guilt since 1997. Every single mental health evaluation says he's got an incredibly small chance of reoffending. His evaluation also says he "has a strong support system of family and friends, which give him an excellent chance of success."

In short, he's an outstanding candidate for release when he comes up for parole in 2007, having at that point spent 18 years in prison on a sentence of 15 to life.

But here's the rub. The murder he committed was of a 10-month old. His daughter. Who he brutally hit to death in a fit of rage when she began crying at 3:00 a.m.

No way the Parole Board's going to grant parole to someone like that. Model prisoner or no. The sentence may formally say 15 to life. But based solely on the crime itself, no way he's getting let out at the early stage of being eligible. So, predictably, the Parole Board denies parole notwithstanding all the totally favorable facts and the extremely low likelihood of future violence.

At which point, in 2009, Kler files a habeas petition, and the Court of Appeal reverses the denial of parole, remanding the case back to the Parole Board in an opinion that clearly and unambiguously reflects the Court of Appeal's sense that Kler should get parole.

The Parole Board gets the message, and in September 2009 -- Kler's now been in prison for 20 years -- grants parole.

Which Governor Schwarzenegger promptly -- and entirely predictably -- reverses. Relying again on the facts of the underlying offense and Kler's alleged "lack of insight" into his offense to reject the Board's decision.

This is, as we all know, an utter crock. Like Governor Davis before him, Ahnold simply doesn't want to grant parole to murderers. Law and standards be dammed. It's bad politics. It's bad business. There's no upside to it, except (of course) to the offender. So the Governor's Office puts down the block.

Placing the ball right back in the Court of Appeal's court when Kler files the also-predictable habeas petition to challenge the Governor's reversal. Which the Court of Appeal promptly takes up, reversing the Governor's decision. So Kler gets out. But it's several years later, and the "responsibility" of the judiciary, not an elected politician.

In short, exactly what you'd expect to happen. Sadly.

There's one other twist in this one that makes it especially worthy of reading, and that adds a doctrinal piece as well. But this post is already long enough. I'll save that one for a rare Part II.

Monday, October 04, 2010

It's a straightforward "Why'd you tase me, bro?" case that the Ninth Circuit resolved back in January. It's a per curiam opinion holding that the officers had qualified immunity. No dissent. Fact-specific. No way it's getting taken en banc, right?

We'll see who gets drawn on this one. We probably know one vote -- Chief Judge Kozinski's -- already, since he was on the panel. The other two were Judges Bybee and Callahan. Apparently the views of those three with respect to when it's okay to tase someone may not be entirely representative of the Ninth Circuit as a whole.

Friday, October 01, 2010

No one comes out looking clean in this one. At least to me. Not the husband. Not the wife. Not the lawyers. Not the judge. No one.

Most of the Court of Appeal's opinion focuses on the misconduct of the trial court and the husband. That's right, I think, as far as it goes. But I might have balanced it out a tiny bit more. The wife was far from perfect as well.

The harm, of course, was not only to the judiciary and to the massive waste of attorney's fees. The kids clearly are impacted by this whole thing. In ways that are really bad.

So a depressing story.

P.S. - The husband's allegedly a recovering alcoholic who's begun drinking again, and who indisputably is pretty wealthy -- he's the heir to a family business that pays a ton of his expenses (country club memberships, attorney's fees, etc.) in addition to providing him with a job. A job that allows him to sleep until noon most days and to find a lot of time to spend with his girlfriend, who the family hired as a babysitter when she was 16 and who allegedly now hangs out on the bed with the husband wearing nothing but a towel. At least in front of the kids. I'm not vouching for the accuracy of any of this, of course. But I mention it only because, if true, it's one way to live, I guess.